A domestic violence accusation can immediately impact your life, even if you have not had your day in court. Simply being accused of violence against a family member can turn friends and family against you, hurt your reputation, and result in immediate restrictions in who you can talk to. In a divorce or separation, a conviction for domestic violence can lead to more serious consequences, including impacting your claims for child custody and visitation.
Law enforcement in North Carolina take claims of domestic violence very seriously and may arrest the accused without any proof they did anything wrong. As soon as you learn about allegations of domestic violence, contact a criminal defense lawyer to fight for your rights. If you were convicted of a domestic violence offense, talk to your North Carolina family law attorney for help with your child custody and visitation disputes.
Domestic Violence in Divorce, Separation, or After Divorce
Domestic violence in a divorce, separation, or even after a divorce is not uncommon. Divorce can be a stressful event. For couples going through such a major life change, their anger and frustration may make them do things they normally would not do, including acting hostile, turning to drugs or alcohol, or possibly even hitting someone.
Under North Carolina Statute § 50B-1, domestic violence involves committing one of the following acts upon a person where there is or was a personal relationship.
- Intentionally or attempting to cause bodily injury
- Placing another in fear of imminent serious bodily injury or continued harassment
- Sex-related offenses, including sexual battery or rape
A personal relationship for the purposes of domestic violence includes:
- Current or former spouses;
- Persons of opposite sex who live together or have lived together;
- Related as parents and children, including others acting in loco parentis to a minor child, or as grandparents and grandchildren;
- Have a child in common;
- Current or former household members; and
- Persons of the opposite sex who are in a dating relationship or have been in a dating relationship.
How Does a Domestic Violence Charge Impact Child Custody
A victim of domestic violence in North Carolina can petition the court for a protective order. A protective order can directly affect the parenting rights of either or both parents.
A protective order restrains the defendant from further acts of domestic violence. A protective order can involve a temporary order or permanent order. With a North Carolina Domestic Violence Protective Order (DVPO), the defendant is supposed to get notice of the petition and have a chance to respond during a court hearing. However, an ex parte order can be issued against the defendant without the defendant being given a chance to respond.
Ex Parte Order
The impact on child custody will depend on whether there were allegations of harm against a child or threats towards children. The court can enter ex parte orders where:
- It is necessary to protect minor children from the danger of acts of domestic violence; and
- A child is exposed to a substantial risk of physical or emotional injury or sexual abuse.
An ex parte DVPO can prohibit the defendant from contacting the alleged abuser and any minor children who are deemed to be at risk of harm or injury. The conditions of the order may include:
- An order to stay away from a minor child;
- An order to return a minor child to the physical care of a parent; or
- An order the other party to have contact with the child, including the terms of contact.
When an emergency protective order is issued, a hearing is generally set within 10 days to allow the other party to respond to the domestic abuse charges.
Permanent DV Protective Order
After a hearing or if the defendant does not show up for a DVPO hearing, the court can issue a DVPO upon a finding that an act of domestic violence has occurred. Upon a request of either party, the court can directly establish conditions related to the temporary custody of minor children and establish temporary visitation rights, including the following.
- Grant/exclude possession of the residence or household.
- Require a party to provide a spouse and his or her children suitable alternate housing.
- Award temporary custody of minor children and establish temporary visitation rights.
- Order the eviction of a party from the residence or household and assistance to the victim in returning to it.
- Order child support payments.
- Order spousal support payments.
- Provide for possession of personal property, including pets.
- Additional prohibitions or requirements the court deems necessary to protect any party or any minor child.
Determining Child Custody After Domestic Violence
When awarding custody or visitation rights, the court generally considers what is in the best interests of the child and consideration to the safety of the minor child. Factors in determining child custody and visitation include:
- Whether the minor child was exposed to a substantial risk of physical or emotional injury or sexual abuse.
- Whether the minor child was present during acts of domestic violence.
- Whether a weapon was used or threatened to be used during any act of domestic violence.
- Whether a party caused or attempted to cause serious bodily injury to the aggrieved party or the minor child.
- Whether a party placed the aggrieved party or the minor child in reasonable fear of imminent serious bodily injury.
- Whether a party caused an aggrieved party to engage involuntarily in sexual relations by force, threat, or duress.
- Whether there is a pattern of abuse against an aggrieved party or the minor child.
- Whether a party has abused or endangered the minor child during visitation.
- Whether a party has used visitation as an opportunity to abuse or harass the aggrieved party.
- Whether a party has improperly concealed or detained the minor child.
- Whether a party has otherwise acted in a manner that is not in the best interest of the minor child.
What to Do When Accused of Domestic Violence
When accused of domestic violence in North Carolina, the person accused should contact an experienced North Carolina domestic violence defense attorney. Generally, you should not contact the accuser, especially if there is a protective order or restraining order. Trying to clear up the alleged abuse may only result in more trouble, including charges for violating a restraining order.
Your attorney can determine whether there is an existing protective order, get notice of any upcoming hearings, and fight to protect your rights for child custody and visitation. Your lawyer can also negotiate for a mutually agreeable custody and visitation plan to avoid having to go through a court hearing.
Shelby Domestic Violence Defense
Individuals accused of making threats or abuse during a divorce can benefit from the experienced legal advice that the skilled attorneys at Caulder & Valentine have to offer. Contact us today for a consultation.